You’ve probably already heard the basics of the case: In 2012, before same-sex marriage was legal in their state, Charlie Craig and David Mullins were planning to get married in Massachusetts, and then have a wedding reception back home in Colorado. They went to Masterpiece Cakeshop to order a custom-designed wedding cake, but the owner, Jack Phillips, refused to discuss it with them. Attributing his position to his Christian faith, he said he couldn’t be involved in celebrating a same-sex marriage. Craig and Mullins sued under Colorado’s anti-discrimination law, and they won at every level. So Phillips appealed to the Supreme Court.

What everybody expected. The case was supposed to be a 5-4 decision, as all nearly all the same-sex marriage decisions have been. Four conservatives (Thomas, Alito, Roberts, and Gorsuch) would line up with Phillips and four liberals (Ginsberg, Sotomayor, Breyer, and Kagan) with Craig and Mullins, with Justice Kennedy casting the deciding vote, as he usually does.

Nobody was too sure what he would do. He has authored (badly, in my opinion) most of the landmark gay-rights decisions of recent years, but (as part of the 5-4 majority in Hobby Lobby) he also was also known to be sympathetic to the kinds of religious-liberty arguments Phillips was making.

However this case came out, though, we were all sure it would have sweeping consequences: Either the Court would affirm that gays and lesbians have to be treated like everyone else, or it would establish “sincere religious belief” as a permanent loophole in our discrimination laws. [1]That’s not what happened.

Instead, the Court decided 7-2 that the Colorado Civil Rights Commission hadn’t handled this particular case with proper respect for Phillips’ religious views, and so the Court threw out the decision against him. Essentially, we’re back to Square One: It’s as if Craig and Mullins had never filed their complaint.

Here’s how limited the decision is: If tomorrow another same-sex couple goes to Masterpiece Cakeshop asking for a wedding cake and Phillips turns them down, nobody knows what will happen next.

This is how that 7-2 breaks down:

Thomas. Justice Thomas went whole-heartedly for the baker’s argument: Phillips is an artist, and the government cannot command him to create a message he finds abhorrent. Quoting previous free-speech cases, he says:

Forcing Phillips to make custom wedding cakes for same-sex marriages re­quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” or to “affir[m] . . . a belief with which [he] disagrees.”

Gorsuch and Alito. Justices Gorsuch and Alito (with Gorsuch writing for both of them) believe that the Colorado Civil Rights Commission has itself discriminated against Phillips because of its hostility to his religious views. They see Phillips’ case as being equivalent to that of William Jack, who intentionally tried to create such a comparison.

[Jack] approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. All three bakers refused Mr. Jack’s request, stating that they found his request offensive to their secular convictions. But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions.

… The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).

… Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case.

So that’s three votes for the baker’s case on the merits. Two more votes and Phillips would get the kind of result he (and the Alliance for Defending Freedom, the Christian-religious-liberty organization arguing his case) had been hoping for: At least in Colorado, bakeries (and presumably florists and caterers and all kinds of other businesses) would be free to deny their services to same-sex couples.

Kagan and Breyer. But you may have noticed a problem in the Gorsuch-Alito reasoning. How could they say Phillips “would not sell the requested cakes to anyone”, when he happily makes wedding cakes for opposite-sex couples? That’s because in their reasoning, a gay wedding cake is a thing. Phillips also wouldn’t sell a “cake celebrating same-sex marriage” to Craig’s mother, who is straight, so he’s not just refusing to sell to gays.

Justices Kagan and Breyer (Kagan writing) found this ridiculous. There is no such thing as a gay wedding cake. The product is just a wedding cake, and the fact that the cake will find its way to either a same-sex or opposite-sex wedding reception does not make it a different product.

And that’s the difference between the Phillips case and the Jack case: The anti-gay message in the Jack case was on the cake. (One cake would have said “God hates sin. Psalm 45:7” on one side and “Homosexuality is a detestable sin. Leviticus 18:2” on the other. Another Jack cake would have put a red X over an image of two groomsmen holding hands.) In the Phillips case the only problem was in the use of the cake and who was using it. Phillips might legally have refused to put overt pro-gay symbols or messages on the cake (say, a rainbow flag). But refusing to make any wedding cake, even one identical to one he would make for an opposite-sex couple, was discrimination.

However, Kagan and Breyer found that the Civil Rights Commission didn’t make that argument properly, and instead some of the commissioners made statements hostile to Phillips religion. This created the impression that the commissioners were responding to their personal beliefs rather than legal principles: They found Jack’s message offensive, but not the Craig-Mullin wedding cake. In short: The CRC could have justified the findings it made, but it didn’t, so its decision in this particular case should be thrown out.

Ginsberg and Sotomayor. Justices Ginsberg and Sotomayor (Ginsberg writing) spelled out in more detail the difference between the Jack and Phillips cases:

Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.

Ginsberg and Sotomayor scoff at Gorsuch’s notion that the product was a “cake celebrating same-sex marriage”.

When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied.

The merits of the case matter more than any procedural errors the Commission may have made.

I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

The Colorado Court of Appeals, Ginsberg notes, “considered the case de novo“. (In other words: It started over, and considered the case on its merits rather than on the basis of what the Commission had done.)

What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say.

In a footnote, Ginsberg-Sotomayor also tear up Thomas’ free-speech argument: A message may be in Phillips’ mind, but it isn’t in the cake unless other people can see it there.

The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s.

It comes down to Kennedy and Roberts. So three justices agree with the baker on the merits and four don’t. But two of the four also find procedural problems in the rulings against the baker. So it’s already clear that the baker will win the case: The judgment against him will be thrown out. The question for the remaining two justices — Kennedy and Roberts — to decide is whether the Court will create a precedent that similar cases can appeal to.

Roberts is happiest when he is changing society in a conservative, pro-wealth, or pro-business direction, but doing it behind the scenes. He doesn’t want the Court to make the kind of waves that could result in a major political backlash. (So, for example, he will write a decision that celebrates the principles behind the Voting Rights Act, while gutting the provisions that enforce it.)

This case is not Roberts’ style. He doesn’t want to author a sweeping takedown of anti-discrimination laws, and Kennedy isn’t going to go for that anyway. Also, he knows that the wind is blowing against him here. More and more, society accepts gay rights. The kind of sweeping decision Thomas, Gorsuch, and Alito want won’t look good in five or ten years.

So on this case he will keep his powder dry, uphold his (mostly false) image as a moderate, and go with what Kennedy wants.

Kennedy wants this case to go away. The decisions leading up to the full legalization of same-sex marriage (in Obergfell) are his legacy. When he eventually dies, that’s what his obituary will be about. He doesn’t want that record tarnished, least of all by his own decision.

But Kennedy is an empathy-based judge rather than a principles-based judge. [2] In this case, he seems to empathize with both sides: Craig and Mullin just wanted to have the same kind of wedding reception anybody else might have. Phillips didn’t want to be forced to act against what he saw as his religious convictions.

So the deciding Kennedy-Roberts opinion lets the baker off the hook on the narrowest possible grounds, without giving future courts anything to work with in similar cases.

When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

So the baker wins. But Kennedy leaves the larger issues open.

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. [3]

I find myself sharing the concern Sarah Posner expressed in The Nation: “how assiduously Justice Kennedy labored to find government ‘hostility’ to Phillips’s religion”. If a judge searches the record hard enough, with hyper-sensitivity to a hostility that he has pre-decided must be there, won’t he always be able to find some evidence of anti-religious bias somewhere?

What will be the evidence of such supposed animus in the next case? A question from a judge at oral arguments? Deposition questions by government attorneys? That is the crucial open question from Masterpiece—not whether the next case will be more winnable for a gay couple without Masterpiece’s specific facts, but how hard opponents of LGBTQ rights will work to convince the courts that similar specific facts exist in that case, too.

What next? Neither side can take comfort in the numbers. Seven justices looks like a solid majority for the conservative side, but four of the seven are only citing procedural reasons for objecting to the Commission’s ruling, and not saying they should have ruled in the baker’s favor.

Similarly, six justices reaffirm that anti-discrimination laws can apply to gay couples, whose “dignity and worth” is not inferior to opposite-sex couples. But Roberts cannot be trusted. If he could have formed a conservative majority on the other side, he quite likely would have.

So here’s where I think we are: Roberts is stalling, with the hope of getting another conservative appointment out of Trump before the Court has to make a definitive ruling. If he gets that extra conservative justice, then the Court will rule decisively to gut anti-discrimination protections for gays and lesbians, using “sincere religious belief” as the loophole.

In the meantime, look for a series of cases like this one, decided on the narrowest possible terms, and usually in favor of the conservative side.

[1] Phillips’ defenders argue that discrimination against gays is special in some way, but it’s hard to see how. When inter-racial marriage was controversial, the arguments against it were also framed in religious terms. Slavery, segregation, discrimination against women — pretty much every kind of bigotry roots itself in religion when other supports start to fail. If “sincere religious belief” allows discrimination against Craig and Mullins, it’s hard to see how any discrimination law stands up.

BTW: Notice what I didn’t say there. I didn’t say that Christianity or any other religion is inherently bigoted. I’m saying that bigots will cloak themselves in religion, and will cherry-pick sacred texts to justify their bigotry. If courts let them get away with this dodge, anti-discrimination laws will be toothless.

[2] That is what has driven me nuts in his previous rulings. He consistently fails to enunciate principles that lower-court judges can apply, instead making what are essentially political arguments that one side or the other deserves to prevail. That is why same-sex marriage cases kept going to the Supreme Court. Kennedy’s opinions were murky, and lower-court judges disagreed about what they meant. Eventually each new case had to come back to Kennedy so that he could interpret himself.

[3] This kind of writing also drives social conservatives nuts. “Our society has come to the recognition …” What kind of legal principle is that?

Kennedy consistently acts the part of the stereotypic liberal-activist-judge who projects his own moral convictions onto the law. Ginsberg is much more liberal than Kennedy, but you’ll never find that kind of mushiness in her opinions. She defines terms, cites precedents, and enunciates principles that lower-court judges can apply with confidence.

I. The Masterpiece Cakeshop case (which the Supreme Court will hear in the fall).

What’s misunderstood about it: People think it has free-speech implications.

What more people should know: The baker objected to the whole idea of making a wedding cake for two men, and cut off the conversation before the design of the cake was ever discussed. That makes it a discrimination case, not a freedom-of-speech case.

Marjorie Silva, owner of Azucar Bakery in Denver, said she told the man, Bill Jack of the Denver suburb of Castle Rock, that she wouldn’t fill his order last March for two cakes in the shape of the Bible, to be decorated with phrases like “God hates gays” and an image of two men holding hands with an “X” on top.

Is this cake gay or straight?

But the Colorado Civil Rights Commission ruled against Jack, because the two cases are very different: Silva objected to the message Jack wanted on the cake, not to anything about Jack himself or the situation in which the cake would be served. If the government had demanded that Silva make that cake, it would have been an example of forced speech, which there is already a long legal history against.

Do conservatives also have a right to refuse forced speech? Yes. A Kentucky court recently ruled in favor of a print-shop that refused to make t-shirts for a gay-pride festival.

So liberals must have howled in rage, right? Not me, and not philosopher John Corvino, who defended the Kentucky decision on the liberal news site Slate:

the print shop owners are not merely being asked to provide something that they normally sell (T-shirts; cakes), but also to write a message that they reject. We should defend their right to refuse on free-speech grounds, even while we support anti-discrimination laws as applied to cases like Masterpiece Cakeshop. … Free speech includes the freedom to express wrong and even morally repugnant beliefs; it also includes the freedom for the rest of us not to assist with such expression.

The reason the baker has lost at every stage so far — the administrative court and state appeals court ruled against him, and the Colorado Supreme Court refused to hear his appeal, letting the lower court ruling stand — is that he wasn’t objecting to putting some particular message or symbol on the cake, like a marriage-equality slogan or a rainbow flag. For all he knew when he refused, the men might have wanted a cake identical to one he had already made for some opposite-sex couple. In short, he objected to them, not to the cake they wanted.

Corvino explains:

One might object that Masterpiece Cakeshop is similar: “Same-sex wedding cakes” are simply not something they sell. But wedding cakes are not differentiated that way; a “gay wedding cake” is not a thing. Same-sex wedding cakes are generally chosen from the same catalogs as “straight” wedding cakes, with the same options for designs, frosting, fillings and so forth. It might be different if Masterpiece had said “We won’t provide a cake with two brides or two grooms on top; we don’t sell those to anyone.” But what they said, in fact, was that they wouldn’t sell any cakes for same-sex weddings. That’s sexual orientation discrimination.

II. Mitch McConnell’s agenda.

What’s misunderstand about it: If the Senate is stuck on its ObamaCare replacement, why can’t it move on to the next items on the Republican agenda: tax reform and the budget?

What more people should know: McConnell is trying to exploit a loophole in Senate rules. As soon as a new budget resolution passes, his ability to pass both TrumpCare and tax reform goes away — unless he changes the proposals to get Democratic votes.

*

During the Obama years, we often heard that “it takes 60 votes to get anything done in the Senate”, as if filibusters that can only be broken with 60-vote cloture motions were in the Constitution somewhere, and the minority party had always filibustered everything. (That’s why even the weakest gun-control bills failed, despite 54-46 votes in their favor.) But the Senate recognized a long time ago that budgets have to get passed somehow, and so the Budget Control Act of 1974 established an arcane process called “reconciliation” that circumvents the filibuster in very limited circumstances.

That’s how the Senate’s 52 Republicans can hope to pass bills without talking to the Democrats at all. But there’s a problem: Reconciliation is a once-a-year silver bullet. Fox Business explains:

Reconciliation allows Congress to consider just three items per fiscal year, whether they pertain to one bill or multiple. Those items are spending, revenue and debt limit. Since the GOP also wants to pass its tax reform agenda using reconciliation, it cannot statutorily do that under this budget blueprint because the two policy measures overlap.

The budget resolution for the current fiscal year dictates that any reconciliation measure must reduce the deficit, which the GOP’s Obamacare repeal was designed to do. Republicans then could draft a new budget resolution for the upcoming fiscal year with easier deficit targets, allowing for more aggressive tax cuts.

Under the most commonly accepted interpretation of the reconciliation rules, as soon as Congress passes a budget resolution for Fiscal Year 2018 (which begins this October), the window for passing TrumpCare under the FY 2017 resolution closes. So the only way to get them both done before facing another election campaign is to do them in the right order: first TrumpCare, then a new budget resolution, then tax reform.

Otherwise, McConnell’s options become less appealing: He can get rid of the filibuster completely, which several Republican senators don’t support. He can scrap either TrumpCare or tax reform for the foreseeable future. Or he can start envisioning the kinds of proposals that might get eight Democratic votes, plus a few to make up for Republican defections.

III. The minimum wage.

What’s misunderstood about it: Both supporters and critics of an much-higher minimum wage think they know what effect it will have on jobs.

What more people should understand: The effect of a minimum-wage increase on jobs is an empirical issue, not something you can deduce from first principles. And the data we have only covers small increases.

*

There is a certain kind of conservative who thinks he learned everything he needs to know about this issue in Econ 101: Every commodity, including unskilled labor, has a demand curve; if you raise its price, demand for it falls.

The right response to that analysis is maybe. Imagine that you own a shop with one machine, run by your sole employee. The machine produces some high-profit item. To make things simple, let’s ignore counterfeiting laws and imagine that the machine prints money. Cheap paper and ink go in, $100 bills come out.

Obviously, you could afford to pay your employee a lot more than the $7.25-per-hour federal minimum wage. But you don’t, because the machine is simple to operate and you could easily replace him, so he doesn’t have any bargaining leverage.

Now what happens if the minimum wage goes up to $15? Do you fire your guy and shut the machine down? Do you abandon your plan to buy another machine and hire a second worker? No, of course not.

Admittedly, that’s an extreme example, but it points out the right issues: Whether an increase in the minimum wage causes you to employ fewer people depends on how much you’re making off those people’s work. If you have a razor-thin profit margin, maybe a higher wage makes the whole operation unprofitable and you lay workers off. But if you could actually afford the higher wage, and the only reason you don’t pay it already is that your workers lack bargaining leverage, then you don’t.

In fact, if a minimum-wage increase gives your customers more money to spend on whatever you make, then you might have to hire more people to meet the demand.

Which situation is more typical? One reason to think the second situation is, is that sometime in the 1970s wages stopped tracking productivity: Workers have been producing more, but not getting comparable pay raises, presumably because they lack the bargaining power to demand them.

During the same era, the minimum wage has not kept pace with inflation. An increase to around $11 would just get it back to where it was in 1968. If it wasn’t causing massive unemployment then, why would it now?

But there’s a problem on that side, too: Past hikes haven’t been nearly as big as the proposal to go from $7.25 to $15. I was a minimum-wage worker myself in the 1970s when it increased from $1.60 to $1.80. I suspect my employer was not greatly inconvenienced. But larger increases might have a shock value that makes an employer say, “We can’t afford all these workers.”

That’s why the new data coming in from Seattle is so important: Seattle was one of the first cities to adopt a much-higher minimum wage, so we’re just beginning to see the results of that. The headlines on that initial study were that the higher wage is costing jobs, but that early conclusion is still debatable.

So in spite of my own preference for a higher minimum wage, I find myself in agreement with minimum-wage skeptic economist Adam Ozimek: This is an empirical question, and both sides should maintain more humility until we see more definitive data.

HB2 is just over a week old. But the 5-3 Supreme Court decision that will strike it down is already clear.

When North Carolina’s legislature came together for a one-day emergency session to pass HB2, a state law that struck down Charlotte’s LGBT anti-discrimination ordinance before it could take effect, a lot of us amateur legal buffs wondered: “Didn’t we do this already?”

For the most part we did, and it was all resolved 20 years ago in the Supreme Court case Romer v Evans. Then it was Colorado instead of North Carolina, and Denver, Boulder, and Aspen were playing the roles of Charlotte, Chapel Hill, and Durham. The cities had instituted anti-discrimination protection for gays and lesbians, so in 1992 Colorado’s voters passed Amendment 2, stating that nowhere in Colorado would “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” entitle anybody to claim discrimination in court.

The Colorado Supreme Court struck the law down, holding that it made gays and lesbians into a class of people with diminished political rights: Other Coloradans could petition their local governments for protection against discrimination, but gays and lesbians could not. The state appealed — the “Romer” on the case name is then-Governor Roy Romer, a Democrat — and in 1996 the Supreme Court supported the conclusion of the state court, but with somewhat different logic:

[Amendment 2’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Romer is really the first place where the Court said that you can’t pass laws to make gays’ lives harder just because you disapprove of them. It led to the whole series of decisions that culminated in last summer’s Obergefell decision legalizing same-sex marriage nationwide. (It was also the first of many gay-rights decision written by Justice Kennedy, who we’ll get to later.)

So is HB2 obviously unconstitutional, without the need to reinvolve the Supreme Court? Not exactly.

You see, HB2’s authors did something clever: Unlike Amendment 2, the law doesn’t actually mention the people it targets. HB2 is in two parts. The part that got all the publicity was about bathrooms: It doesn’t say anything about transgender people, it just says you can only use the bathroom that corresponds to the gender on your birth certificate.

The other part makes it impossible for a city to pass any kind of LGBT non-discrimination ordinance, but it does so without mentioning LGBT people. Ostensibly, this part of HB2 isn’t about sex or gender at all; it’s about creating a uniform business climate across the state, so that prospective employers have only one set of rules to deal with. North Carolina already had a Wage and Hour Act that uniformized various regulations about wages. HB2 amended it to declare that non-discrimination provisions must be uniform across the state too.

Of course, the only people affected by the change are LGBT folks, because those were the only local non-discrimination ordinances in North Carolina. But the law doesn’t single them out by name. It’s just, like, a coincidence or something.

Again, we’ve been here before (in the 1960s and 1970s) with race and gender discrimination. Slate‘s Mark Joseph Stern explains:

Under Arlington Heights v. Metropolitan, courts must attempt to glean whether a law with a disparate impact on minorities was motivated by discriminatory intent. To do so, courts examine several factors—all of which align chillingly with HB 2. For example, does the challenged law disproportionately affect one minority? (Yes.) Does the “historical background” reveal “a series of official actions taken for invidious purposes”? (Yes—the stated purpose of the law was to overturn Charlotte’s LGBT nondiscrimination ordinance.) Do the events leading up to the law depart from normal decision-making procedures? (Yes; the legislature rammed the law through in record time with minimal discussion.) Does the legislative history reveal governmental animus? (Absolutely: From the start, Republican legislators have vocally supported HB 2 as an effort to disadvantage LGBT people.)

But there’s a still a problem: In all those gay-rights decisions he wrote, Justice Kennedy dodged the question of whether laws concerning gays and lesbians require some form of heightened scrutiny, like laws affecting race and gender do. Laws that affect women or racial minorities may seem to be about something entirely neutral, but because governments have a long history of race and gender bias, courts can’t take that at face value; they have to consider the broader situation in the way Stern describes. Lower courts have sometimes decided that heightened scrutiny was called for — the Colorado Supreme Court did in Romer, for example — but Justice Kennedy has a frustrating way of reaching decisions without resolving the underlying legal issues (something I have complained about repeatedly).

So there is something to decide here: Should North Carolina’s legislature be taken at its apparent word, that this is just about a uniform business climate, unrelated to any animus towards the LGBT community? As Stern points out, that’s a really hard case to make, if the Court lets itself consider the broader context at all. But no particular precedent says it absolutely has to do that.

So this will reach the Supreme Court, and the votes there are already obvious: Roberts, Alito, and Thomas will want to favor HB2, just as they have been on the wrong side of all the gay rights cases. Breyer, Ginsberg, Sotomayor, and Kagan will be want to strike it down, since I believe they all already see sexual orientation as requiring heightened scrutiny. That leaves Kennedy, who will do what he always does: decide the case in favor of gay rights, without laying any principles that will keep the next case from coming back to him.

So that’s a 5-3 vote to strike HB2 down, a margin that will be unaffected by whether Justice Scalia is replaced in time to matter.

All year, gay rights has had to compete with claims of “religious freedom”. I should have predicted that: If you look back in American history, bigotry has always hidden behind religion.

As 2015 began, same-sex marriage was clearly headed to the Supreme Court. The ruling in Obergefell v Hodges wouldn’t come until June, but both sides were making their final push to bend public opinion in their favor. So in February, I wrote “When Hate Stays in the Closet” to answer what seemed to me to be the two most reasonable-sounding arguments against same-sex marriage. (A consistent gripe I have about the national debate is that all sides tend to focus on the most hateful and unreasonable arguments made against them, and leave the more reasonable ones untouched.)

On April 6, “Religious Freedom: Colorado’s sensible middle way” explained the principles involved in the various cases involving bakers, photographers, and other folks who felt their religious convictions should allow them to not serve gay couples who were planning their weddings. The key principle, which was already embedded in First Amendment cases and didn’t need any new religious-freedom laws to enforce it, was:

a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

So if a baker refuses to put “Gay Marriage Rocks” on a cake, that’s his First Amendment right. But if the shop sells wedding cakes to the public, it isn’t free to refuse a wedding cake to a same-sex couple.

I continued on the religious-freedom theme in May with “Turning the Theocracy Against Itself“, making the point that the new religious-freedom laws were clearly intended only for conservative Christians, and predicting that

If “religious freedom” laws end up giving atheists and Muslims the same consideration Christians are claiming, Christians will repeal those laws themselves.

For example: Inscribing “In God We Trust” on the money forces atheists either to do without the convenience of a national currency, or to hand out pieces of paper that denounce their own religious views. How can any non-sectarian religious-freedom law not ban that?

In May, I gave my best explanation of why I think bans on same-sex marriage are unconstitutional, even though the people who ratified the 14th Amendment probably never envisioned protecting same-sex couples.

In current law, the [legal] roles of husband and wife are virtually interchangeable. … So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.

Also in May/June, the Josh Duggar molestation scandal broke. For reasons I can’t recall, I resisted devoting an article to it, but a segment of a weekly summary was of article length and scope, concluding:

Morality, as I conceive it, is about how we’re all going to live together on the Earth without making each other miserable. If you picture it instead as a private interaction between yourself and the Divine Lawmaker, I think you’ve still got some growing up to do.

In early June, the Bruce/Caitlin Jenner story suddenly put transgender issues in the headlines. I had never thought about the topic seriously before (and it showed; ever since, commenters have been educating me about how not to inadvertently give offense). But rather than mask my own squeamishness, I decided to explore it to see what insight it could give me into the people who saw the celebration of Jenner as a “snapshot of just how corrupt, how morally corrupt, how morally bent, how morally twisted, how morally confused, how morally bankrupt we have become”. In “What’s So Scary About Caitlyn Jenner?” I announced an abstract principle that I should probably break out into its own article sometime: Everything you thought was a category is actually a continuum.

I think the unifying principle of social conservatism is the desire to believe that the categories in our heads — male/female, black/white, good/evil, friend/enemy, and so on — correspond to real and solid divisions in the external world. Social conservatives increasingly retreat into an information bubble as it becomes more and more obvious that what they want to believe simply is not true. Binary categories are just kludges evolution has provided to help us simplify a world too complex for our brains to fully grasp.

Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us. Not in other marriage cases – that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

By founding his decision on a vague “right to marry” that he scries out of the word liberty in the 14th Amendment, Kennedy fed conservative rhetoric about “redefining marriage” and “judicial activism”. In the long run, I believe the reasoning that will stand is the equal-protection argument above, which I learned by reading the lower-court decisions.

After Obergefell, opponents of same-sex marriage largely went into denial, claiming that the other branches of government (or some popular uprising) could still stop this abomination (which has been happening in Massachusetts for more than a decade with no visible ill effects).

The opponents hate to be called bigots, and argue that their opposition is based on religion, not hatred. So it’s completely different than say, the opposition to interracial marriage in the 1960s. In order to make that argument, you have to be completely ignorant of history, so I tried to fix that with a history lesson in “You Don’t Have to Hate Anybody to be a Bigot” (the year’s most popular new post). After reviewing the religious arguments that have justified segregation and slavery, I concluded:

There’s nothing new about nice, salt-of-the-Earth people who sincerely believe that certain other people are undeserving of empathy or respect or fair treatment. There’s nothing new about those beliefs being expressed and justified in religious terms, or put forward by ministers and theologians.

Quite the opposite, that’s the normal situation.

In other words, it is totally typical for Americans to hide their disregard for their neighbor behind their love of God. Today’s Mike Huckabees and Kim Davises are heirs to a long tradition of religiously justified bigotry, even if they would rather not claim that legacy.

In his Obergefell dissent, Chief Justice Roberts raised the specter of polygamy as the next step down the slippery slope. In July, I examined that possibility, finding that (A) it’s not nearly so simple a step as Roberts implied, and (B) it’s also not the horror that he imagined.

By September, we had the Kim Davis saga, which I covered in “Is Kim Davis a Martyr?” I describe the standard of purity Davis and others want to apply here — that Christians shouldn’t involve themselves in other people’s sins in any way — as “a ‘sincerely held belief’ that was invented solely for this purpose.” I see no reason to take it seriously.

As the year ends, the push to define religious freedom broadly — for conservative Christians, if no one else — continues, accompanied by the self-justifying fantasy that American Christians are persecuted. We’ll undoubtedly see more states pass laws that legalize discrimination against gays, and since the male-Catholic-conservative majority on the Supreme Court (Roberts, Scalia, Thomas, Alito, Kennedy) shows no signs of grasping the problem yet, it wouldn’t surprise me if they extend the religious-freedom principles in the Hobby Lobby decision even further in 2016.

I don’t see this trend stopping until unpopular religious groups start claiming their equal rights under these laws and interpretations, and forcing conservative judges to explain why they don’t deserve the same consideration Christians get. When those laws start protecting the broadly defined religious freedom of Muslims and pagans and atheists, conservative Christians will lead the repeal effort themselves.

Thursday, the story of the Kentucky county clerk who refused to issue marriage licenses (now that same-sex couples can marry) reached its inevitable conclusion. Having been turned away by the Supreme Court, Davis was out of legal options for delaying the moment of truth: She had to either obey a court order to issue marriage licenses, including licenses to same-sex couples, or be in contempt of court.

She chose contempt and has been jailed, while her office has begun issuing licenses in her absence. Federal Judge David Bunning had the lesser option of fining her, but concluded (correctly, I think) that fines would simply delay the resolution of the case: Davis would not pay them and would continue showing contempt for the court’s order, forcing Bunning to jail her at some later date.

Response. Presidential candidates courting the religious-right vote immediately began characterizing Davis as a martyr for her beliefs. Ted Cruz issued a statement beginning with this line:

Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith.

Mike Huckabee compared Davis to Abraham Lincoln, who “disregarded the Dred Scott 1857 decision that said black people aren’t fully human.” [1] He also tweeted that “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country”, and is planning a rally tomorrow outside the jail where she’s being held. (Some other Republican candidates have been less supportive. Lindsey Graham has been the most blunt: “As a public official, comply with the law or resign.”)

Other voices on the right portray Davis in larger-than-life terms. RedState.com founder Erick Erickson sees her case as a harbinger of civil war. Conservative Review‘s Daniel Horowitz casts Davis as this era’s Rosa Parks, and Steve Deace wants her to run for president. (Critics compare her to a different character in the civil rights movement: George Wallace standing in the doorway of the University of Alabama, unsuccessfully trying to block integration.)

Martyrdom. The Christian tradition is rich with martyr stories, going all the way back to the stoning of Stephen and the imprisonment of Paul in the New Testament. In the Lutheran school I attended through eighth grade, we were sometimes asked to imagine facing a choice between denying our faith and punishment or death. (I have heard similar stories from Catholics.) Like Muslim suicide bombers, we were promised glories in Heaven that would more than compensate for any earthly suffering.

But is that what’s happening here? Does Kim Davis deserve the enthusiastic admiration of conservative Christians, and even the grudging respect of those who disagree with the stand she’s taking? Or is she undermining the rule of law and usurping the powers of her office to implement her personal religious agenda? [2]

What the judge said. Before deciding that question, it’s worthwhile to examine the court order she’s defying. In that order, Judge Bunning considers Davis’ arguments and explains why he is rejecting them.

Davis argues that by signing a license for a same-sex marriage, she would be expressing approval of such marriages, which her religion denies. Bunning counters:

The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis’ religious convictions have no bearing on this purely legal inquiry.

(Let me amplify that a little: Marriage-under-the-law and marriage-in-the-eyes-of-God have always been two different concepts. No one is asking Davis to affirm that same-sex marriages are valid in the eyes of God.)

A footnote spells out what the legal qualifications are:

A couple is “legally qualified” to marry if both individuals are over the age of eighteen, mentally competent, unrelated to each other and currently unmarried.

Davis also protests on free-speech grounds, claiming that an order that she sign the license form is compelled speech banned by the First Amendment. Bunning disagrees:

Because her speech (in the form of her refusal to issue marriage licenses) is a product of her official duties, it likely is not entitled to First Amendment protection.

In support of this view, he quotes a precedent from 1971:

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.

And Bunning does not see a violation of the First Amendment’s free-exercise-of-religion guarantee:

Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.

Bunning does not mention this quote, but the principle goes back to an 1892 decision in which Oliver Wendell Holmes ruled against a policeman fired for something he said:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.

Davis is perfectly free to practice her religion in her personal life, but when she assumes the role of a public official, she has to act according to law. [3]

Cashing in? Hypocrisy? It’s a safe bet that St. Paul’s imprisonment wasn’t part of his grand plan to become a celebrity and get rich. But Dan Savage has been making this prediction since Davis first hit the headlines:

No one is stating the obvious: this isn’t about Kim Davis standing up for her supposed principles—proof in a moment—it’s about Kim Davis cashing in. There’s a big pile of sweet, sweet bigot money out there waiting for her. If the owners of a pizza parlor could raise a million dollars just by threatening not to cater the gay wedding no one asked them to cater… just imagine how much of that sweet, sweet bigot money Kim Davis is going to rake in. I’m sure Kim Davis is already imagining it.

Ad hoc purity. I have a more general complaint than hypocrisy, one that applies not just to government officials like Davis, but also to the baker [4] and florist who have been claiming persecution when they are not allowed to discriminate against same-sex couples: Their position relies on two principles, and one of them they just made up for this purpose.

The first principle is the one right-wing Christians always want to focus on: Homosexuality is sinful. Whether or not the rest of us agree, it’s incontestable that they believe it and have for a long, long time.

But since no one is asking them to commit homosexual acts, that principle by itself doesn’t create an issue. Their position requires a second principle: Christians should live according to a standard of purity that doesn’t allow them to involve themselves in other people’s sins.

Kim Davis has to imagine a pretty broad purity zone around herself, if verifying that two men are “over the age of eighteen, mentally competent, unrelated to each other and currently unmarried” involves her in the sin of their homosexuality. And the bakers who won’t sell a cake to a same-sex wedding reception — giving them no connection whatsoever to the actual marriage ceremony — must have an even broader purity zone.

Religious purity.

Now, there are religious people who try to live their lives according to extremely high standards of purity (like the Jain monks who wear masks so as not to kill any tiny insects they might otherwise breath in). But that does not include any of the right-wing Christians who are claiming persecution. Their Christian practice did not require an expanded purity zone until now, and even now it only applies to situations that involve gays.

For example, apparently the clerks who gave Kim Davis her marriage licenses didn’t balk at the fact that (according to Jesus) some of those marriages were adulterous. I’ll bet she didn’t have any trouble renting a hall or buying flowers or cakes. Even the most conservative Christians simply didn’t care about this kind of purity before same-sex marriage became legal, and still don’t care about it in any other context.

Here’s what that says to me: This isn’t about religion, not when it depends on a “sincerely held belief” that was invented solely for this purpose. So either it’s about personal animus against gays, or it’s about protesting the politics of same-sex marriage. Neither is the kind of moral or constitutional issue that Kim Davis’ defenders want to make it.

[1] I’m not sure which act of Lincoln’s Huckabee is referring to, and I suspect he doesn’t know either. Dred Scott laid out some general principles about slavery before Lincoln was elected, but what specifically did the Supreme Court order Lincoln to do? How did he defy that order?

[2] As satirized in this image and this story from The Onion. I suspect conservative Christians are picturing a world in which only conservative Christian public officials have the right to bend their duties around their religion. But a friend suggested this example, which corresponds pretty well to the Davis case: What if a Jewish meat inspector decides that his religious convictions require him to reject all pork? I’ve also seen this example: What if an official refuses to issue hunting and fishing licenses, because he takes “Thou shalt not kill” literally?

[3] A common complaint by conservative pundits is that liberals are fine with liberal officials ignoring laws. President Obama’s recent executive orders on immigration are a frequently cited example. But there are some significant differences between the two cases, as becomes clear when you compare the justifications.

Instead, the memo outlines the executive branch’s strategy for handling the impossible situation Congress has created: The law would deport 11.3 million undocumented immigrants, but Congress has provided funding for dealing with only a tiny fraction of that number. Consequently, the administration must prioritize whom to deport.

When a court disagreed with the administration’s reasoning and issued an injunction against parts of the order, the administration stopped implementing it — except for one mix-up, which is being rectified without the judge needing to fine or jail anyone for contempt.

After same-sex marriage, is polygamy a further slide down the slippery slope, the next step of progress, or a separate issue entirely?

For the last 10-15 years, people who brought polygamy into a discussion were usually talking about something else. Polygamy was supposedly the next stop on the slippery slope we would step onto if we legalized same-sex marriage: Once you start fiddling with the definition of marriage, the doomsayers prophesied, there is no clear place to stop. In the Supreme Court’s recent marriage decision, Chief Justice Roberts brought that argument into his dissent:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.

Slippery-slope arguments are often a way to create flashy distractions from the issues that are actually present: If you have no coherent case to make about why a loving, committed same-sex couple shouldn’t be married, you talk instead about legalized polygamy, incest, pedophilia, and bestiality. Maybe no one is actually making those proposals yet, but they could at some point down the road.

On the other hand, some slippery-slope arguments actually are prophetic. In his Lawrence dissent in 2003, Justice Scalia warned:

And sometimes, when we look back on prophets of doom, our modern eyes see them as unintentional prophets of progress. The downward slide they feared, we recall proudly. For example, shortly after the Civil War, Rev. R. L. Dabny published a retrospective justification of slavery and secession: A Defence of Virginia. In it he warned the North of the horrors its abolitionist notions would ultimate bring to pass:

But other consequences follow from the abolitionist dogma. “All involuntary restraint is a sin against natural rights,” therefore laws which give to husbands more power over the persons and property of wives, than to wives over husbands, are iniquitous, and should be abolished. The same decision must be made upon the exclusion of women, whether married or single, from suffrage, office, and the full franchises of men. … But when God’s ordinance of the family is thus uprooted, and all the appointed influences of education thus inverted; when America has had a generation of women who were politicians, instead of mothers, how fundamental must be the destruction of society, and how distant and difficult must be the remedy!

Wives owning property! Women voting and running for office! Surely society must collapse from the unnatural strain of such abominations. Why didn’t we listen when Dabny warned us? If only we’d kept blacks in slavery, we could have avoided all this.

[You knew that was sarcasm, right?]

So OK: But for a few dead-enders, same-sex marriage is a done deal now. So polygamy’s usefulness as a slippery-slope horror is over. But are the predictions correct? Is that where we’re heading next? And if we get there, will it be a downward slide or an upward climb?

I’m not going to take a pro or con position, but I would like to shape the discussion a little.

If you’re worrying (or hoping) that some judge will legalize polygamy next week, stop. Think about how hard it would have been to implement same-sex marriage during the Washington administration: At the dawn of the American Republic, men and women had different legal rights, and husband and wife were unequal legal roles. Same-sex marriage would have been absurd then, because women were legally incapable of playing the husband role, and before they could become wives, men would have to give up inalienable constitutional rights. To make same-sex marriage legal then, the whole legal relationship of men and women — which was embedded in countless laws — would have had to change.

But everything was different by 2003, when the Massachusetts Supreme Court considered the question. Massachusetts had passed an Equal Rights Amendment into its Constitution in 1976, so men and women were equal under the law. The U.S. Supreme Court had thrown out Louisiana’s Head and Master law in 1981, so husband and wife were legal equals. All that really had to happen to make same-sex marriage a reality was to change the forms from Husband and Wife to Spouse and Spouse.

(You can accurately describe American marriage after 1981 in a lot of ways, but “traditional marriage” is not one of them. I don’t know of any traditional society where husbands and wives have been equal under the law.)

Polygamy today resembles same-sex marriage in the Washington administration. Changing the forms to allow an indefinite number of spouses wouldn’t come close to defining it. Are we talking about Biblical (or Mormon) polygamy, where one man marries several women? Jacob and Leah and Rachel, say, or Solomon with his “seven hundred wives of royal birth and three hundred concubines“? Or a group marriage where everybody listed is married to everybody else? Or maybe a chain marriage, where Bob marries Carol marries Ted marries Alice, but Bob and Alice are just friends? Or is some central couple the prime relationship, with other spouses secondary? The possibilities are endless, and the law would have to account for them.*

However you picture it, giving polygamy legal recognition would mean establishing legal infrastructure to answer questions that don’t come up in binary marriages. In a group marriage, can one spouse divorce the others, or does the whole relationship dissolve and need to be reformed? What’s the property settlement look like? Do all spouses have equal rights and responsibilities regarding the children, or do biological parents have a stronger legal bond? In a Biblical polygamous marriage, are all the wives equal, or does the first wife have a special role?

In any of the polygamy models, it doesn’t take much imagination to spin out questions that may not be unanswerable, but aren’t answered in any obvious way by current law. Such questions go all the way down to the most trivial level: What fee should a clerk charge for a plural marriage license? Are current fees based on per-person or per-marriage logic? That question never comes up as long as all marriages are between two people, but someone would need to decide God-knows-how-many minor issues like that.

Consequently, a court can’t simply order to a county clerk to issue a three-person marriage license. The judge would have to rewrite big chunks of the legal code, which a judge is not equipped to do, even if one thought he or she could get away with asserting that kind of power.

Is polygamy a legal right? A somewhat more realistic fantasy/nightmare goes like this: A judge might find that three or more people have a right to the legal advantages marriage offers, even if the judge can’t say exactly how that right should be implemented. That would have to go through a legislature, which is equipped and empowered to rewrite large chunks of the legal code.

So a judge could order the legislature to rectify the situation within a specified time. The legislature would probably refuse, and then the judge could assess damages against the state, which the governor could refuse to pay, and from there who knows where it all goes.

A key part of that scenario, though, is that the legal argument for a right to polygamy is sitting there inside the same-sex-marriage jurisprudence, waiting for some bold judge to notice it. In spite of John Roberts’ dissent, I don’t think that’s true.

In order to have this discussion, though, we need to set aside the particular opinion Justice Kennedy wrote, which really is as bad as the dissents claim. (I covered that when it came out.) It’s not at all typical of marriage-equality opinions, and it contains little in the way of a legal framework that could be extended to polygamy or anything else. I suspect it will have the same kind of influence that Kennedy’s similarly mushy DOMA opinion had: In subsequent lower-court decisions, judges made their rulings consistent with the outcome of the DOMA case, but didn’t attempt to apply Kennedy’s reasoning, such as it was.

The way pro-marriage-equality judges other than Kennedy have approached the issue is through the equal protection of the laws, a position I summarized in May: The opposite-sex marriage laws create an advantageous institution (marriage) and extend its benefits only to opposite-sex couples, when same-sex couples could be included by simply editing the license form, and no credible evidence suggested that negative consequences relevant to the mission of the government would ensue. (The possible offense to God claimed by anti-gay activists is not something the Constitution instructs the government to take notice of. Read the Preamble.) Under those circumstances, there’s really no way to claim that gays and lesbians are being granted the equal protection of the laws promised by the 14th Amendment.

What lies in the background of that argument is that the separation between gays/lesbians and the benefits of marriage is not something the affected individuals can easily fix on their own. Sexual orientation may or may not be innate, but it is not generally changeable in adulthood. And while legally, a gay or lesbian person could enter into a marriage with someone of the opposite sex, it’s hard to see that as a satisfactory solution. Consequently, because of who you are, you might be unable to take advantage of the marriage laws.

That argument is much harder to make for polygamy, which feels more like a lifestyle choice than an innate orientation. The government set up an advantageous path hoping to induce you to live one way, but you decided to live another way. I would defend your right to make that choice, but I don’t see how it gives you a right to the advantages of the other lifestyle.

Maybe some other legal argument for a right-to-polygamy is possible, but I don’t know what it is. I think you’d need to show that favoring binary relationships is an irrational thing for the government to do, and can’t conceivably lead to any social benefit the government might reasonably want to achieve. Constructing such an argument would be much harder than just cutting and pasting from the same-sex marriage arguments.

If polygamy isn’t a right. If polygamy isn’t a right inherent in the laws currently on the books, then if people want it, they need to convince legislatures to pass new laws. And that means convincing a large chunk of the electorate (who may or may not have polygamous fantasies) that a society that openly includes polygamous households is better — or at least no worse — than the society we have now.

If we’re debating in a legislature rather than before a judge, then I think the burden of proof shifts a little on both sides. To win in court, a polygamy supporter would need to show that banning it is completely irrational. To win in a legislature, they’d just need to argue that allowing it makes more sense than banning it. deBoer sums up:

my argument for polygamy is that there are people in the world who want it, and I recognize the inherent and total equality of the dignity and value of their relationships in comparison to two-person relationships.

As in same-sex marriage, we’re talking about real people doing real things. What’s our basis for telling them not to? I’m not saying there is no basis, I just can’t explain what it is off the top of my head.

On the other side, a legislature would have to debate a real proposal, not just an idea. Exactly what relationships are we giving legal form? How do all the details work? In particular, a law shouldn’t create holes in the system, which would be easy to do. (If my health insurance plan covers my spouse, maybe I could establish universal health care by marrying everybody. Or maybe I could solve the immigration problem by marrying all of the undocumented immigrants. Yes, those examples are ridiculous. But it’s not hard to imagine more realistic unintended scenarios, where groups might redefine themselves as marriages to take advantage of a poorly phrased law.) deBoer argues that the difficult logistics of polygamy isn’t a reason not to do it. But a real proposal would have to deal with those logistics.

In short, I would tell both deBoer and Rauch the same thing: I’m convincible, but I’m not convinced. The anti-polygamy argument isn’t sharp enough, and the pro-polygamy argument isn’t detailed enough. But however the issue eventually comes out, it will do so on its own merits, and will not follow automatically just because gay couples or lesbian couples are getting married.

* I’ve questioned whether I should even use the word polygamy to cover all these possibilities, since it often refers specifically to Biblical polygamy, with polyandry referring to a woman with many husbands. But the articles I’ve referenced are comfortable with that usage, so I have reluctantly followed it.

Throughout American history, most bigots have been nice folks who had sincere religious reasons for treating other people badly.

Social conservatives were all over the airwaves and print media this week, explaining how and why the battle over marriage equality is not over. The Supreme Court may have spoken, but the other branches of government, they promised, could still step in somehow, if we elect the right people. Or county clerks could just refuse to issue licenses. Or ordinary people could practice civil disobedience in some unspecified way. There are, Glenn Beck has promised us, ten thousand pastors willing to “go to prison or to death” over this issue (though exactly what charges will brought against them or who might try to kill them is a bit vague).

To me, the most revealing moment of this Alamo-like refusal to surrender came when Texas Senator Ted Cruz was interviewed by Savannah Guthrie on The Today Show. Cruz was defending the “religious freedom” of Texas clerks not to issue marriage licenses to same-sex couples, when Guthrie made an analogy:

GUTHRIE: If a state clerk refused to issue a marriage license to an interracial couple, would you agree with that too?
CRUZ: There’s no religious backing for that.

Religion and interracial marriage. To anyone who remembers the 1960s or has read the history of interracial marriage (or civil rights in general), Cruz’ response is simply ridiculous. Opposition to interracial marriage was constantly expressed in religious terms.

For example, the reason the Supreme Court had to decide Loving v. Virginia, the case that legalized interracial marriage nationwide in 1967, was that when Richard and Mildred Loving tried to get their conviction for miscegenation overturned (so that they could legally come back to Virginia), Judge Leon M. Bazile was having none of it:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Judge Bazile’s decision says nothing about hating black people or even interracial couples. Yahoos on the street might have taunted Richard Loving as a “nigger lover”, but the judge did no such thing. He just saw the sense in a Virginia law that upheld God’s plan for the races.

Segregation. Opposition to school desegregation could be similarly respectful and devout. In 1958, Rev. Jerry Falwell preached a sermon “Segregation or Integration: Which?”. (Like all of Falwell’s pro-segregation sermons, this one is sadly unavailable online. Perhaps Liberty University might want to rectify this.) In it, he expressed his religious objection to the Supreme Court’s Brown v. Board of Education decision.

If Chief Justice Warren and his associates had known God’s word and had desired to do the Lord’s will, I am quite confident that the 1954 decision would never have been made. The facilities should be separate. When God has drawn the line of distinction, we should not attempt to cross that line.

That polite-but-concerned religious defense of segregation goes all the way back to 1867, when the Pennsylvania Supreme Court OK’d segregated passenger trains. Chief Justice Daniel Agnew wrote:

We declare a right to maintain separate relations, as far as is reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.

Slavery. Even slavery had religious justifications, and the breakup of the Union was presaged by the splits in major religious denominations between Northern churches who found slavery immoral and Southern churches who taught that it was part of God’s plan. As Josiah Priest wrote in 1852:

“If God appointed the race of Ham judicially to slavery, and it were a heinous sin to enslave one, or all the race, how then is the appointment of God to go into effect? …. God does never sanction sin, nor call for the commission of moral evil to forward any of his purposes; wherefore we come to the conclusion, that is is not sinful to enslave the negro race, providing it is done in a tender, fatherly and thoughtful manner.”

Hatred of men, or love of God? Like most people who oppose marriage equality for gays and lesbians today, past opponents of racial equality were not necessarily the screaming haters we see in the more dramatic videos from the civil rights movement. Far more were sedate and thoughtful people who were not aware of hating anyone. They just held a sincere belief — “in a spirit of kindness and charity”, they would tell you — that blacks were an inferior race who were better off among their own kind, or perhaps under the “tender, fatherly and thoughtful” guidance of a white master.

Most believed that God agreed with them, and could cite you chapter and verse to prove it. Freeing the slaves, desegregating the schools, allowing interracial marriage — at the time, those changes were all seen as aggressions against the religion of large numbers of American Christians.

And it is a mistake to think that such beliefs are dead relics of an era long past. There are still white supremacist churches today. As the web site of Thomas Robb Ministries in Harrison, Arkansas puts it:

For the mission God has bestowed upon His chosen people, the white race, he requires their separation. They must honor their heritage, not despise it. Other races must honor their heritage as well. In a well ordered world, this is God’s way.

Granted, such groups are small compared to the Catholics or Southern Baptists. But your First Amendment rights don’t depend on the size of your congregation. If the religious freedom Ted Cruz wants for himself applies to Thomas Robb’s parishioners as well, then of course the county clerk must be able to refuse a marriage license to an interracial couple.

Conservatism and progress. It’s not hard to see why Cruz doesn’t want to remember or identify with the historical tradition of social conservatism: When we look back from today’s perspective, we see that the slavers and segregationists were wrong. Most of them were probably very nice people if you met them in the right circumstances, but they were wrong. They had sincerely held beliefs that were firmly anchored in their understanding of Christianity, but they were wrong.

So hardly anybody wants to claim their legacy today.

That’s the general pattern of social conservatives and progress: Eventually, progress catches up to them as well, so they can look back and see that the previous revolution in social practices and public morality was justified. The slaves should have been freed. Blacks should have been served at the Greensboro lunch counter. Women should be allowed to vote and run for office and enter the professions. (I didn’t get into the religious arguments for keeping women in the kitchen, but trust me, they were plentiful, and are also still with us.)

But this time it’s different! It always is. With no one left to defend them, our memory of the social conservatives of the past reduces to Simon Legree, KKK lynch mobs, police unleashing dogs and fire hoses against peaceful marchers, and the white rabble screaming obscenities at little black girls on their way to school. The thoughtful, intellectual, devout defenders of an unjust status quo are forgotten, because their memory embarrasses their heirs.

Consequently, in every generation, the well-considered, devout bigotry of nice people is presented to the world as a new thing. They’re nothing like the villains we recall from past social-justice movements. This time they have good reasons to block progress. They have looked deep into their souls and read their Bibles and taken it to the Lord in prayer. They don’t hate anybody, they just believe that the world as it was when they were growing up was endorsed by God, and they want to stop today’s amoral radicals from upsetting God’s appointed order.

In other words, they are just like every generation of social conservatives before them. The analogy with Josiah Priest and Chief Justice Agnew and Judge Bazile and the young Jerry Falwell (who later reversed himself, removed his segregation sermons from circulation, and quietly pretended he had never believed anything else) could not be more apt.

Bigotry is not the same as hate. Bigotry just means believing that certain groups of people do not deserve the same kind of consideration you want for yourself. Their suffering and distress doesn’t count, or they must have brought it on themselves in some obscure way. You don’t have to hate those people any more than you hate your dog when you keep him penned in your yard, or hate your children when you make them eat something they hate. (The analogy of parents and children, in fact, was often applied by pro-slavery writers to the master/slave relationship. Husbands, similarly, needed to make decisions for their wives, because women were pure but unworldly creatures. That’s what men loved about them.)

I don’t know precisely why Ted Cruz or the four dissenting judges in Obergefell believe that gays and lesbians don’t deserve the equal protection of the laws, but I doubt hate has much to do with it. It doesn’t have to. The Tennessee clerks who resigned rather than issue same-sex marriage licenses — I’ll bet they’re nice people with sincere beliefs. But they’re also bigots.

Conservatives blanch in horror at that word, when someone applies it to them. In Justice Alito’s dissent, he imagines this dystopian future:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

How unfair, that those who find their neighbors’ relationships unworthy might themselves be examined and found wanting. How unfair, that they might be lumped together with the past bigots they so closely resemble. Don’t we understand that it’s different this time? That these are nice, thoughtful people of sincere beliefs?

We understand quite well.

Hidden residue. On the surface, bigotry against gays and lesbians may seem unrelated to racial bigotry. But when you deny your unattractive roots rather than repent and atone for them, their influence can linger in the back of your mind, occasionally peeking out at inopportune moments.

In an Alternet article picked up by Salon, Tim Wise called attention to the lingering racial bigotry implicit in some prominent denunciations of the recent marriage-equality ruling. Congressman Louie Gohmert, for example, warned of divine retribution:

God’s hand of protection will be withdrawn [from America] as future actions from external and internal forces will soon make clear. I will do all I can to prevent such harm, but I am gravely fearful that the stage has now been set.

Gohmert is far from the only person to make this point, and his statement contains no overt racism. But think about its implications: God kept the U.S. under His special protection and showered us with blessings while we committed genocide against the Native Americans and enslaved Africans by the millions. But as soon as we celebrate people of the same gender living together in loving, committed relationships, He’s done with us.

I don’t see an alternative to Wise’s interpretation: Gohmert’s statement only makes sense if you assume that the suffering of non-whites is beneath God’s notice.

Wise goes on to discuss another Ted Cruz interview, this one with Sean Hannity. The Obergefell decision coming so closely on the heels of the Court’s refusal to gut ObamaCare made for “some of the darkest 24 hours in our nation’s history”. (“I couldn’t say it more eloquently,” Hannity responded.)

Put aside the many-people-died events in American history (like Pearl Harbor or 9-11 or the bloodiest battles of the Civil War) and just restrict your attention to Supreme Court history. Cruz graduated magna cum laude from Harvard Law, so I assume he knows about the Korematsu decision that OK’d putting Japanese-Americans in concentration camps; and Dred Scott, where the Court declared blacks had “no rights which the white man was bound to respect”; and the 1883 decision in the Civil Rights Cases, which gave the green light to Jim Crow. To be some of the darkest 24 hours in the Court’s history, preserving ObamaCare and establishing marriage equality has to rank with those.

Again, it’s hard to avoid the conclusion that the suffering of non-whites just doesn’t count. Wise draws his conclusion:

Sometimes, racism is manifested in the subtle way a person can dismiss the lived experiences of those racial others as if they were nothing, utterly erasing those experiences, consigning them to the ashbin of history like so much irrelevant refuse.

You don’t have to hate anybody to be bigoted against them. Believing that they don’t count is more than enough.

Summing up. There’s nothing new about nice, salt-of-the-Earth people who sincerely believe that certain other people are undeserving of empathy or respect or fair treatment. There’s nothing new about those beliefs being expressed and justified in religious terms, or put forward by ministers and theologians.

Quite the opposite, that’s the normal situation. Throughout American history, most people have been pretty nice — even the bigots. America has seen nice slaveholders, nice segregationists, nice male chauvinists. And from the beginning, we have been a religious people, who could not have lived with ourselves if we couldn’t justify our bigoted beliefs in religious terms.

So we did, and we do. It’s normal.

Bigotry has a long history in the United States. And while that tradition includes haters, they’ve never been the majority. Today’s non-hateful bigots, with their sincere beliefs and their Biblical justifications, stand in a line that goes back to the beginnings of our nation. But the people in that line have consistently been wrong, and eventually even the people further up the line see it.

That’s why they never claim their legacy or own the authenticity of their place in that line. But the rest of us don’t have to humor their historical blindness. Bigotry today looks no different than bigotry 50 or 100 or 200 years ago. There’s no reason to call it anything else.

By all means, celebrate. But, looking to future gay-rights cases, Justice Kennedy gave us more rhetoric than precedent.

Friday, the Supreme Court ended the decades-long legal debate on marriage equality, making same-sex marriage legal for the entire nation in Obergefell v Hodges. Across the country, supporters of gay rights were jubilant as they read to each other delicious paragraphs out of Justice Kennedy’s majority opinion. But I have a complaint: Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.

Not in other marriage cases — that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

The DOMA hangover. As regular Sift readers know, I have mixed feelings about Justice Kennedy, particularly on the subject of gay rights. He tends to rule the way I want, and he’s often the swing vote that puts my position over the top. But being the swing vote, he usually ends up writing the majority opinion, and he writes it badly. That’s what happened when the Court threw out the Defense of Marriage Act (DOMA) two years ago, which I covered (along with Chief Justice Roberts’ hamstringing of the Voting Rights Act) in an article I demurely called “This Court Sucks“. And it happened again Friday.

The reason Obergefell came to the Court in the first place was that lower courts could not follow Kennedy’s mushy reasoning in the DOMA case. The Supreme Court is supposed to do more than just decide the current case, it’s supposed provide interpretive frameworks for lower courts to apply, so that future cases can be decided without involving the Supremes again. But when Judge Kean was throwing out Oklahoma’s ban on same-sex marriage, for example, he wrote that he had “gleaned” — not quoted, gleaned — two principles from Kennedy’s DOMA opinion. Other courts gleaned other principles and disagreed, so the highest court had to sort it out.

This time, Kennedy has made marriage equality the law of the land, but he’s done it with another piece of mushy reasoning that is a poor climax to the distinguished series of lower-court decisions supporting same-sex marriage, going all the way back to the 2003 Goodridge decision in Massachusetts. Instead of following the compelling logic laid out by one lower court after another, Kennedy’s opinion looks like exactly what critics of marriage equality say it is: a judge redefining marriage according to his own values. His ruling is full of beautiful tributes to the dignity of same-sex couples, but short on the kind of step-by-step legal thinking you can find in the lower-court rulings, which I summarized last month.

Due process isn’t enough. Every pro-marriage-equality judge I know of, other than Kennedy, has centered the argument on the 14th Amendment‘s guarantee of “the equal protection of the laws”. As I summarized:

In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination.

… So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

Instead, Kennedy focuses on the 14th Amendment’s due-process clause, and finds a fundamental right to marry in the word liberty. His rhetoric is inspiring if you already agree with him, but if you don’t, his reasoning isn’t compelling. The dissents by Roberts, Thomas, Scalia, and Alito eviscerate his argument, and rightly so.

Kennedy’s biggest problem is that the Constitution doesn’t require governments, either federal or state, to recognize marriage at all. (If Oregon wanted to become “the free love state” and stop performing marriages entirely, that would be up to Oregonians.) Liberty traditionally means being left alone by the government, not that the government must help you in some way. So Roberts makes an argument that appears in some form in all the dissents:

Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.

The question Kennedy should have raised is: Once the State has defined the “positive entitlement” of marriage for some people, what’s its justification for denying those benefits to others? But that’s an equal-protection issue, not a liberty issue.

In short: the ruling came out the right way, but the people who still want to hold out against marriage equality feel vindicated in their view that the Court has usurped the power of the legislative branch by “redefining marriage”. It didn’t have to be like this. Why, oh why, couldn’t Justice Ginsburg have written this ruling?

Why it’s important. The lower courts nearly all used the equal-protection framework: Define a level of scrutiny appropriate to laws that discriminate against gays, and then examine the government’s reasons for discriminating under that level of scrutiny. One of the issues to decide, if you go that way, is whether gays and lesbians are a class that has traditionally faced discrimination, and so how much benefit of the doubt a legislature or electorate should get as to its motives.

Racial discrimination, for example, faces the highest level of scrutiny. As a matter of judicial precedent, laws that discriminate against traditionally disadvantaged racial groups are inherently suspect. Similarly, laws that discriminate against women are inherently suspect. It’s possible that some particular race- or gender-discriminating law can be justified, but a court will not give the government any benefit of the doubt.

The traditional discrimination against gays and lesbians certainly would justify giving laws against them some heightened level of scrutiny, but the Supreme Court has never done so. Kennedy doesn’t do so either.

Pro-marriage-equality judges who don’t invoke heightened scrutiny are forced to give the legislative branch the benefit of the doubt. And so they end up having to argue that same-sex marriage bans are completely irrational. That argument has been made, and was sitting there for Kennedy to endorse. He didn’t.

Going either way would have established a precedent for fighting other anti-gay discrimination: Either anti-gay discrimination would face heightened scrutiny in the future, or there would be a precedent for saying that certain kinds of anti-gay discrimination are irrational.

Instead, Justice Kennedy gave us just this result, justified by a lot of effusive rhetoric that has no further legal consequences.

The “threat to American democracy”. All four dissents lamented a judicial usurpation of powers properly belonging to the democratic branches — which is in fact a fair criticism of the argument Kennedy made. The place for flowery rhetoric is in the legislature or on the campaign trail. But it wouldn’t have been a fair criticism of the equal-protection argument Kennedy avoided.

And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.

If you’re a straight person very distant from the gay community, this might sound convincing. But if you imagine yourself in the place of a same-sex couple, it isn’t convincing at all. Would you rather have widespread social approval ten years from now, or the equal protection of the laws today? The answer is pretty obvious.

Our fellow citizens are being persuaded of the justice of marriage equality — not, for the most part, by referendum campaigns, but by living in society with same-sex couples. That process will continue apace.

In these the-sky-will-fall-if-we-allow-this situations, most people have to see something in action before they realize the panic-mongers are conning them. As I predicted back in 2003:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Today, no one cares how interracial couples got the right to marry. Most young people have trouble believing it was ever an issue. (Have you ever tried to explain to a teen-ager why his friend’s parents’ marriage would have been illegal 50 years ago? I have.) So it will be for same-sex marriage.

The possibility that the Supreme Court might soon rule in favor of same-sex marriage, resulting in its legality in all 50 states, is causing a certain amount of panic on the Religious Right. In response, presidential candidates whose campaigns hope to exploit that panic have been spreading dangerously ignorant ideas about the Constitution and the judicial branch of government. And, as ignorant people often do, they’ve been claiming that everyone else is ignorant, while they alone grasp the true nature of the Founders’ vision.

For example, when NewsMax asked Dr. Ben Carson about same-sex marriage, he responded:

First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch. So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law.

Getting a decision from the Court is not tantamount to saying, “That settles it. It’s the law of the land.” And when I hear people say that I just cringe, and I’m thinking: “How many people passed 9th-grade civics?” This is not that complicated.

There are three branches of government, not one. We don’t like it if the executive branch overreaches, and pretends that it can act in indifference to the other two. And neither can we sit back and allow the Court — one branch of government — to overrule the other two.

And so when a court rules that same-sex marriage is OK, it doesn’t mean that the next day marriage licenses should be issued for same-sex couples. It simply means that if the legislature agrees with that court decision, and the representatives of the people, the elected officials, if they then put this into legislation, and it is signed and enforced by the executive branch, then you have same-sex marriage. But until those other two branches act, what you have is a court opinion and nothing else.

Clearly, Governor Huckabee’s 9th-grade civics teacher has a lot to answer for, because he seriously misunderstands how our system of government works. So let’s back up and answer a simple civics question: How does the Supreme Court come to have the power to say what laws mean and even to determine that some of them are unconstitutional?

Where judicial review comes from. People who dislike particular court rulings often imagine that this power of judicial review wasn’t in the Founders’ original vision at all; somewhere along the line the Supreme Court just usurped it. But in fact the Founders foresaw judicial review and approved.

If you want to know what the Founders thought the Constitution meant, one of the best places to look is in The Federalist, a series of essays Alexander Hamilton, James Madison, and John Jay wrote to explain the new Constitution and encourage states to ratify it. In Federalist #78, dated June 14, 1788, Hamilton wrote:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

So where does the power of judicial review come from? From the Founders. It goes all the way back.

Without judicial review, our constitutional rights are meaningless. This idea is easiest to explain through a hypothetical: Imagine that a Clinton landslide in 2016 sweeps in large Democratic majorities in both houses of Congress. When the new Congress takes office in January, 2017, it passes this one-sentence law:

Whereas Ben Carson and Mike Huckabee are pernicious individuals whose continued liberty is detrimental to well-informed public discourse, they shall be imprisoned in the federal penitentiary in Leavenworth, Kansas for a period of ten years.

President Hillary Clinton signs the law. Federal agents arrest Carson and Huckabee and drag them to Leavenworth. What happens next?

First, notice that even though the Carson-Huckabee Imprisonment Act of 2017 went through the process the Constitution lays out for passing a law, it is still blatantly unconstitutional. In technical terms it’s a bill of attainder, which the Constitution specifically forbids in Article I, Section 9:

No Bill of Attainder or ex post facto Law shall be passed.

But how does that fact do Carson and Huckabee any good? They can complain to the agents who arrest them. They can complain to their Leavenworth guards and cell mates. But so what? “Yeah, yeah, join the club,” they’ll be told. “Everybody in here is innocent.”

Short of counting on friends with guns to break them out, there is only one effective thing they can do: file a writ of habeas corpus, (another Article I right). In other words, Carson and Huckabee can make their jailers justify themselves before a judge. That judge then has the power to say that the Carson-Huckabee Imprisonment Act is unconstitutional. And the very instant that decision comes down, they have to be released.

Notice what doesn’t happen here: There is no “judicial law”, no Carson-Huckabee Release Act that the judge has to pass. And the judge’s ruling is not a suggestion that the other two branches might want to revise or repeal the Carson-Huckabee Imprisonment Act. Carson and Huckabee don’t have “a court opinion and nothing else”. They have their freedom.

If they didn’t, then the Constitution’s protection against bills of attainder would be meaningless. Congress could just refuse to pass a Release Act, or President Clinton could veto it, or just not get around to enforcing it. And Ben and Mike would sit in jail, no matter what rights they had in theory.

All our rights are like that. If you can’t bring your case before a judge who has the power to tell the other branches “Stop doing that right now!”, then in practical terms you don’t have any rights.

Interpretation. I intentionally made that last example simple: a one-line law that stood on its own and did something obviously wrong. But lawmakers with bad intentions are usually sneakier than that.

A much more likely scenario is that Carson-Huckabee imprisonment would be a page of legalese somewhere in the middle of a 300-page bill that built a dam and changed food-stamp requirements and made Al Sharpton’s birthday a national holiday. It wouldn’t mention Carson or Huckabee by name; it would just give the administration power to imprison people who fit some abstract description. Of the people described, only Carson and Huckabee would be worth bothering to arrest. Or maybe 100 people would get arrested, of whom 98 really would be dangerous to the public.

However it shook out, the effect would be the same: Ben and Mike would find themselves in Leavenworth without a trial. But now their habeas corpus case is more complicated, because it isn’t obvious that the Omnibus Reconciliation Act of 2017 — which contains that one significant page — is a bill of attainder. Somebody has to interpret it, and weigh its effects against the abstract definition of a bill of attainder, or against the 14th Amendment’s abstract guarantee of “due process of law”. Exactly how much “process of law” were Carson and Huckabee “due”, and did they receive it? Lawyers from the Clinton Justice Department might concoct some very slick arguments saying that they did.

And that brings us back to Hamilton: “The interpretation of the laws is the proper and peculiar province of the courts.” If the courts are prevented from doing that job, then a clever lawmaker or a hostile administration can take away your rights.

Change. Another way my example is simple is that “bill of attainder” means pretty much the same thing today as it did when the Constitution was written in 1787: a law that sends people to prison without a trial. But it’s reasonably certain that the Constitutional Convention of 1787 had no idea it might be creating a right for same-sex couples to marry, and neither did the people who drafted and passed and ratified the 14th Amendment after the Civil War.

So how can a judge “find” that right in the Constitution today? Did the Founders and subsequent amendment-drafters not understand what they were writing? Were all previous judges stupid not to see this right that judges see today? Or if you don’t believe those absurd things, how is marriage equality not a total abuse of the power of judicial review?

The answer is that even when the text of a law doesn’t change, the practical meaning of that law can change as the world changes around it. Today we have lots of “constitutional” rights that the Founders could not have imagined. When they wrote the Second Amendment, they weren’t picturing AR-15s. When they guaranteed “freedom of the press”, they weren’t thinking about blogs. The Fourth Amendment protection against “unreasonable searches and seizures” didn’t originally have anything to do with the pictures on your smart phone, or the possibility that police might see through your walls with infrared devices.

Today, those kinds of issues come up all the time, along with examples of extended rights we probably shouldn’t have. (If a nuclear weapon can be shrunk down to a suitcase that I can carry, should I have a right to “bear” those “arms”?) In a perfect world, maybe we’d be constantly updating the Constitution to make this stuff clear. But judges don’t get to live in that perfect world; they have to decide the cases that come before them on the basis of the laws on the books.

One solution would be for a court to throw up its hands whenever a case involved something lawmakers hadn’t foreseen. (“How should I know what to do with bazookas?”) In an era with fast technological change and a dysfunctional Congress, increasingly large parts of life would move outside the law. So you’d have the right to bear the same kind of ball-and-powder weapons the Minutemen used, or to print whatever you wanted on a press like Ben Franklin’s. Beyond that, though, your rights would start to evaporate.

Instead, in the American legal tradition, judges read the laws as embodiments of principles, which can then be abstracted and applied to new situations. You really wouldn’t want it the other way.

Marriage equality. In the case of same-sex marriage, the main thing that has changed since the Founding era isn’t the Supreme Court, it’s opposite-sex marriage. In 1789, any gay or lesbian couple claiming they had a right to marry would have been laughed out of John Jay’s Supreme Court, and rightfully so.

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. … The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer.

Only the husband could own property or sign contracts. No wife could enter into employment without her husband’s approval. There was also no concept of marital rape; for all practical purposes, a wife’s body was her husband’s property, so if he chose to use that property in the ways that husbands typically did, the law saw no issue.

(BTW: Anybody who uses the phrase “traditional marriage” and doesn’t mean what I just described is playing games with words. A marriage of spouses equal under the law is not at all “traditional”, even if the spouses are of opposite genders.)

In that legal environment, a same-sex couple trying to marry would be doing something absurd. Who would be the husband and who the wife? Whose contractual agreements would be valid? Which spouse could discipline the other? And in an era when only men could vote, wouldn’t democracy be undermined if some households had two votes and others none? Nonsense!

But all those circumstances changed. As Justice Ginsburg framed the issue last month:

Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that states should [still] be allowed to have? To cling to marriage the way it once was?

In current law, the roles of husband and wife are virtually interchangeable. There continue to be social and cultural differences, and many religions still encourage husbands and wives to take on distinct roles. But nothing in the law forces them to do so.

So under the law as it currently exists, same-sex marriage is not absurd, and it exists without causing any apparent problems in about half the country, as well as in several other countries.

Equal protection. In addition to “due process”, the 14th Amendment guarantees each American “the equal protection of the laws”. In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination. Salon summarized Justice Breyer‘s analysis like this:

When states try to justify denying same-sex couples the right to marry, “the answer we get is, well, people have always done it,” observed Breyer. That answer won’t do, because it was used to justify racial segregation. “Or, two, because certain religious groups do think it’s a sin.” That can’t justify a law either. “And then when I look for reasons three, four and five, I don’t find them. What are they?”

So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.

That’s a use of judicial power I think Alexander Hamilton would understand.

There have been a lot of painful back-and-forths about what the proposed state “religious freedom” laws allow. Like this one, where ABC’s Jake Trapper tries to get the sponsor of Arkansas’ original RFRA bill (which has since been watered down a little) to admit that it allows “discrimination” against a same-sex couple getting married, while the legislator will admit only that it allows bakers, florists, et al to refuse to “participate in the message”.

There actually is a sensible in-between position, and I doubt a new law was necessary to allow it, because it was already embedded in the judge’s decision in the 2013 Colorado bakery case, as I noted last week.

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. … [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. [my emphasis]

Let me take this out of the gay-rights arena with a hypothetical example: Suppose I represent an atheist group that is about to celebrate its tenth anniversary. I go to a baker and ask for a cake. Suppose I want him to write “God is Dead” on the cake, and he refuses. If I sue, then I believe he should win the case, because his freedom of speech is violated if he’s forced to write something he doesn’t agree with.

But now suppose we didn’t get that far: As soon as I say why I want a cake, the baker responds, “I’m not going to make a cake for an atheist group.” All I want is a cake with a 10 on top of it, and he says no. Now if I sue, I believe I should win, because the baker is discriminating against atheists as a religious group. In other words, a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

The complaint against Marjorie Silva, owner of Azucar Bakery, was filed by Castle Rock, Colo., resident Bill Jack, who claimed Silva discriminated against his religious beliefs when she refused to decorate a cake showing two groomsmen with a red “x” over them and messages about homosexuality being a sin.

Silva said she would make the cake, but declined to write his suggested messages on the cake, telling him she would give him icing and a pastry bag so he could write the words himself. Silva said the customer didn’t want that.

If conservative Christian bakers would offer gay and lesbian couples a similar compromise — “I’ll make the cake and sell you two groom figures, but you’ll have to put them on the cake yourself.” — I suspect they’d have no problems with the courts. Certainly not in Colorado, and probably not anywhere.

The loophole the Arkansas legislator is trying to wiggle through is that the Supreme Court has extended First Amendment protection to “symbolic speech” — wordless actions that make a statement, like burning an American flag. He wants to claim that providing any of the services involved in a same-sex wedding can be construed as a symbolic statement that the provider approves of same-sex marriage. So a florist’s or photographer’s right to free speech is violated if s/he is forced to make such a statement.

That’s ridiculous. It’s the kind of passive aggression I’ve pointed out before: exaggerating your sensitivity in order to control others by claiming offense. Society could not function if we allowed everyone to claim this degree of moral sensitivity. (“If you force me to hire beef-eaters in my widget factory, then you’re making me say I approve of eating beef, which violates my Hindu faith.”) So it’s an implicit claim that conservative Christians have special rights that other people don’t have.

What this situation cries out for is a “reasonable person” interpretation: Would reasonable people look at the flowers at a same-sex wedding and see the florist making a political/religious statement? (“Those must come from Belle’s Flowers. I didn’t know Belle endorsed same-sex marriage. I thought she was a Christian.”) Or would they just think “nice flowers”?

This interpretation separates actual religious-freedom issues from the bogus ones that fundamentalists are putting forward. A reasonable person would assume that the officiating minister approves of the ceremony, so the minister’s presence makes a statement that the law can’t force. But florists? photographers? bakers? caterers? No.